Translation
C-623/17 — 20
Observations of Latvia
Case C-623/17 *
Document lodged by:
Republic of Latvia
Usual name of the case:
PRIVACY INTERNATIONAL
Date lodged:
14 February 2018
TO THE PRESIDENT AND THE MEMBERS OF THE COURT OF
JUSTICE OF THE EUROPEAN UNION
WRITTEN OBSERVATIONS OF THE REPUBLIC OF LATVIA
In accordance with Article 23, second paragraph, of the Statute of the Court of
Justice (the Court), the Republic of Latvia, represented by Irēna Kūciņa, assistant
in charge of jurisdictional issues on behalf of Secretary of State at the Ministry of
Justice and Viktorija Soņeca, lawyer at the office of the Agent of the Republic of
Latvia, submits written observations in connection with the present request for a
preliminary ruling in which, pursuant to Article 267 TFEU, questions were
referred by the Investigatory Powers Tribunal (‘the UK Tribunal’) on 31 October
2017.
C-623/17
Privacy International
The Republic of Latvia accepts delivery of documents in the present case: (a) by
letter to the following addressed: Ministry of Justice of the Republic of Latvia —
Office of the Representative of the Republic of Latvia to the Court of Justice
(address); (b) by fax: 00 371 670369211; (c) by email to the address
xxxxxxxxxx@xx.xxx.xx or (d) by e-Curia.
* Language of the case: English.
EN
link to page 3 link to page 3 link to page 3 link to page 6 link to page 6 link to page 10
OBSERVATIONS OF LATVIA — CASE C-623/17
Table of contents
I. LEGAL PROVISIONS RELEVANT TO THE CASE ........................................ 3
I.1. Provisions of European Union and International Law .................................. 3
I.2 The provisions of Latvian law ........................................................................ 3
II. LEGAL ARGUMENTS CONCERNING THE QUESTIONS REFERRED
BY THE UNITED KINGDOM COURT................................................................. 6
III. ANSWERS TO THE QUESTIONS POSED BY THE UK TRIBUNAL ....... 10
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PRIVACY INTERNATIONAL
I. LEGAL PROVISIONS RELEVANT TO THE CASE
I.1. Provisions of European Union and International Law
1
The Treaty on the European Union (‘the TEU’) Articles 4, 5 and 6; 1
2
The Treaty on the Functioning of the European Union (‘the TFEU’), Article 16; 2
3
The Charter of the Fundamental Rights (‘the Charter’), Articles 7, 8 and 51; 3
4
Directive 2002/58/EC of the European Parliament and of the Council of 12 July
2002 concerning the processing of personal data and the protection of privacy in
the electronic communications sector (Directive on privacy and electronic
communications) (Directive 2002/58/EC’), recital 11, Articles 1 and 15; 4
5
Directive 95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of personal
data and on the free movement of such data (‘Directive 95/46/EC’), recital 13 and
Article 3; 5
6
The European Convention on the Protection of Human Rights and Fundamental
Freedoms (‘the ECHR’), Article 8.
I.2 The provisions of Latvian law
7
Article 71(1) of the Law on electronic communications 6
‘
Data that must be retained shall be retained and transferred to the authorities
responsible for preliminary investigations, operational agents, national security
services, prosecutors and courts in order to safeguard national security and
public safety or to conduct criminal investigations, criminal prosecutions and the
adjudication of criminal cases and to the Competition Council for the purposes of
investigations regarding infringements of competition law taking the form of
prohibited cartels’.
1
OJ 2010, C 83, p. 13.
2
OJ 2010, C 83, p. 47.
3
OJ 2010, C 83, p. 389.
4
OJ 2002, L 201, p. 37.
5
OJ 1195, L 281, p. 31.
6
Latvijas Vēstnesis (Official Journal), 17 November 2004, No 183. Available at:
https://likumi.lv!doc.php?id= 96611.
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OBSERVATIONS OF LATVIA — CASE C-623/17
8
The Law on the national security services, Article 6, Article 19(1)(8) and
Article 26(1) and (4) 7
Article 6 of the Law on the national security services:
‘
If a person considers that the national security services have, by their conduct,
infringed his rights and freedoms enshrined by the Law, that person shall be
entitled to lodge a complaint with the prosecutor who, after investigating that
complaint, shall issue an opinion as to the legality of the conduct of the agent of
the State security services, or shall institute proceedings (before a court).’
Article 19(1)(8) of the Law on the national security services
‘The agents of the national security services are entitled, within the scope of their
competence, to receive, free of charge, information, documents and other
necessary evidence relating to services supplied to individuals, including
information from the holders of information resources and technical resources
concerning the communications of individuals by post, telegraph, communications
networks and data transmission’.
Article 26(1) of the Law on the national security services
‘The Prosecutor General and prosecutors specially authorised by him shall
oversee the procedure for operational activities, espionage and counter-espionage
by the national security services and the system of protection of ‘State secrecy’.
When they carry out that supervision, they are authorised to access the
documents, evidence and information which are in the possession of the national
security services. The identity of sources of information is to be revealed only where they are
directly involved in the commission of a criminal offence, and only
to the Prosecutor General and it shall be disclosed only to prosecutors specially
authorised by him after authorisation by the head of the authority responsible for
State security; the disclosure of the identity of sources of information in the course
of surveillance procedure shall be prohibited.’
Article 26(4) of the Law on the national security services
‘The national security services shall be subject to judicial supervision in the
situations and according to the procedures laid down by the Law on operational
activities’.
9
Article 1 of the Law on national security 8
7
Latvijas
Vēstnesis
(Official
Journal),
19 May
1994,
No 59.
Available
at:
https://likumi.lv!doc.php?id= 57256.
8
Latvijas Vēstnesis (Official Journal), 29 December 2000, No 473/476 (2384/2387). Available
at: https://likumi.lv!doc.php?id= 14011.
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PRIVACY INTERNATIONAL
‘1.
National security is the result of joint and targeted measures implemented
by the State and society, by which the independence of the State, its constitutional
order, its territorial integrity, the possibility for society to develop without
constraint, well-being and stability are guaranteed.
2.
Guaranteeing national security is a fundamental obligation of the State’.
10 Article 9(5), Article 35(1) and Article 38 and point 7 of the transitional measures
of the Law on operational activities 9
‘The acquisition of operational data from electronic communications operators —
that is to say the acquisition of data in respect of which protection is legally
provided for operators (data which must be retained) — shall be carried out with
the consent of the person in charge of (head) of the body responsible for
operational activities or an agent authorised by him, when he requests data from
an electronic communications operator. If the data to be retained which relates to
a person identified in a specific operational activity are requested for a period of
more than 30 days in total, the body responsible for operational activities shall
obtain the consent of the judge specially authorised by the Present of the District
Court (of the city).’
Article 35(1) of the Law on operational activities
‘The Prosecutor General and the prosecutors specially authorised shall oversee
the procedures for operational activities. By overseeing those activities, they are
themselves authorised to access information, documents and other evidence which
is available to the body responsible for operational activities’.
Article 38(1) of the Law on operational activities
‘When an opinion is issued on a complaint concerning the legality of the conduct
of an operations agent, the prosecutor shall inform the complainant of the
completion of the investigation and shall indicate (without further details)
whether, during the investigation, illegal interference with the legal rights and
freedoms of that person has been established. The prosecutor shall also inform
him of his rights of appeal.
(2) Further information shall be provided in the communication relating to the
oversight of the conduct of the operations agent only if notification to the person
concerned is permitted under the conditions laid down by Article 24.1 of this Law,
which authorises a person to be notified that an operational action was carried
out in respect of him.
Point 7 of the transitional measures of the Law on operational activities
9
Latvijas Vēstnesis (Official Journal), 30 December 1993, No 131. Available at:
https://likumi.lv!doc.php?id= 57573.
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OBSERVATIONS OF LATVIA — CASE C-623/17
‘The amendments to Article 9(5) of this Law which provide for the acquisition of
data which must be retained by the consent of the President of the District Court
(of the city) shall enter into force on 1 January 2020’.
II.
LEGAL
ARGUMENTS
CONCERNING
THE
QUESTIONS
REFERRED BY THE UNITED KINGDOM COURT
11 In answer to the first question referred for a preliminary ruling by the UK
Tribunal, the Republic of Latvia refers, first of all, to the provisions of Article 4(2)
TEU, that the European Union is to respect the essential State functions. In
particular, national security remains the sole responsibility of each Member State.
Accordingly, it follows from the foregoing that it is for each Member State to
adopt the measures necessary to safeguard national security and that the definition
of national security does not fall within the competence of the European Union.
12 That argument is also supported by recital 11 in the preamble to Directive 2002/58
which states that that directive does not apply to issues of protection of
fundamental rights and freedoms related to activities which are not governed by
Community law (now EU law), and by the provisions of Article 1(3) thereof,
which provides that that directive does not apply to activities relating to State
security.
13 At the same time, the Republic of Latvia points out that that conclusion also
derives from the case-law of the Court of Justice. The first indent of Article 3(2)
of Directive 95/46 10 excludes from the scope of the directive the processing of
personal data in the course of an activity which falls outside the scope of
Community law (now EU law), such as those provided for by Titles V and VI of
the Treaty on European Union and in any case to processing operations
concerning public security, defence, State security … 11
14 The Republic of Latvia submits that, in the European Union, there is no one single
conception of ‘national security’, and that each Member State defines that notion
differently. However, regardless of that fact, there can be no doubt among
Member States about the fact that activities directed against the independence of
the State, its sovereignty, its territorial integrity, its constitutional order, the power
of the State and the threats caused by espionage, terrorism, separatism and
extremism, which threaten the territorial integrity of the State by anti-democratic
means may be regarded as being a threat to national security.
10
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of personal data and on the free
movement of such data (OJ 1995, L 281, p. 31).
11
Judgment of 30 May 2006,
Parliament v
Council and Commission (C-317/0 and C-318/04,
EU:C:2006:346), paragraph 54.
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PRIVACY INTERNATIONAL
15 The protection of national security falls within the responsibility of each Member
State, which is why each Member State is entitled to establish specifically which
characteristic circumstances and actions are perceived as threats to national
security. Those are strongly influenced by the history of the State concerned, its
geographical position, its geopolitical situation, its economic development and
other factors.
16 For example, in the Republic of Latvia, ‘national security’ is understood as
meaning ‘State security’, a situation which is achieved as the result of unified and
targeted measures implemented by the State and by society, by which the
independence of the State, constitutional order and territorial integrity, the
possibility for society to develop without constraint, well-being and stability are
guaranteed. Guaranteeing national security is the fundamental duty of the State 12.
17 In the Republic of Latvia, the identification and prevention of threats to national
security are carried out by the national security services, namely the State
institutions which, in order to carry out missions determined by the national
security system, are responsible for espionage, counter-espionage and operational
activities. In the Republic of Latvia, there are three national security services: the
Office for Protection of the Constitution, the Security Police and the Espionage
and Military Security Service 13 which act within the scope of their powers 14. The
Office for protection of the Constitution is in charge of espionage and counter-
espionage. The Espionage and Military Security Service is responsible for military
espionage and counter-espionage 15; and the Security Police is the service
responsible for counter-espionage and domestic security. 16
18 The right of the national security services to acquire data to be retained for the
purpose of national security from electronic communications operators is provided
for by the Law on national security 17 and by the Law on operational activities 18.
The Prosecutor General and the prosecutors specially authorised oversee the
procedures for operational activities of espionage and counter-espionage by the
national security services. 19
12
Article 1 of the Law on State security.
13
Article 11(1) of the Law on the national security authorities.
14
Article 1 of the Law on the Office for the Protection of the Constitution.
15
Article 14 of the Law on the national security services.
16
Article 15 of the Law on the national security services.
17
Article 19(1), point 8, of the Law on the national security services.
18
Article 9(5) of the Law on operational activities.
19
Article 26(1) of the Law on the national security services.
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OBSERVATIONS OF LATVIA — CASE C-623/17
19 Operational data from electronic communications operators (data to be retained) is
acquired by the national security services with the consent of the person
responsible (head) of those services or the officer authorised by the latter and with
the assent of a judge specially authorised by the President of the District Court (of
the city) 20. If the acquisition of data has a substantial impact on the right of person
to privacy, the national security services must always obtain the agreement of the
judge and, in every case, the Prosecutor General oversees the legality of the
activities of the national security services.
20 Therefore, it follows from the foregoing that, in the framework of the legislation,
the national security services not only have powers and rights, but also the
obligation to respect the law and human rights. For example, if a person considers
that, by their conduct, the national security services have infringed his legally
prescribed rights and freedom, that person has the right to lodge a complaint with
the prosecutor who, after an investigation, issues an opinion on the legality of the
conduct of the national security services agent and may also bring legal
proceedings 21.
21 The Republic of Latvia points out that, in the Explanations relating to the Charter
of Fundamental Rights 22, it is stated that fundamental rights may be limited in
order to attain objectives in the public interests. However, in relation to the
foregoing, it must be observed that restrictions on fundamental rights cannot be
disproportionate or constitute unjustified interference in the substance of those
rights 23.
22 In the context of the present case, the Republic of Latvia notes that the acquisition
of bulk communications data does not concern the acquisition of communications
data to be retained concerning a particular individual, in the traditional sense, and
which undermines an individual’s right to privacy, but the acquisition of data on
communication signals in a particular territory at a given moment.
23 The national security services use the information acquired for specific purposes,
specifically to identify and prevent threats to national security. Therefore, the aim
of acquiring data is to localise and identify the threat and not to confirm
suspicions about one or more specific persons, as the law enforcement authorities
do in the course of criminal proceedings.
24 As regards the second question referred, the Republic of Latvia takes the view
that, in the light of its answer to the first question, there is no need to answer the
20
Article 9(5) of the Law on operational activities.
21
Article 4 of the Law on the national security services.
22
Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17). Available at
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:303:0017:0035:en:PDF.
23
Judgment of 13 April 2000,
Karlsson and Others (C-292/97, EU:C:2000:202), paragraph 45.
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PRIVACY INTERNATIONAL
second. However, the Republic of Latvia points out that, in the
Watson judgment 24, the Court’s findings related to the investigation of serious crime and
not the prevention of a threat to national security, which is why the findings in that
judgment cannot be applied directly to the powers of the national security services
to accomplish their task and safeguard national security.
25 The submissions set out above are without prejudice to the obligation of Member
States to observe the right to privacy of persons guaranteed by the Charter and by
the European Convention on the protection of human rights.
26 In accordance with the case-law of the European Court of Human Rights, the
Member States have broad discretion in order to safeguard national security,
which also includes means such as the acquisition and processing which follows
of the bulk communications data and the fact that such actions constitute an
interference in the rights of persons to the right to privacy and the confidentiality
of communications.
27 In
Klass and Others v
Germany 25, the European Court of Human Rights held that
the secret interception of private telecommunications constituted, without any
doubt, interference to the right to privacy and the confidentiality of
correspondence. However, the European Court of Human Rights authorises those
activities if they are strictly necessary for safeguarding democracy, if they are
carried out in accordance with the law and have the specific legitimate objective
of safeguarding national security or combatting terrorism, and if they are
proportionate to the objective pursued. In the
Klass judgment the European Court
of Human Rights ruled that combatting terrorism and threats related to espionage
may require the States to adopt various modern and complex technological
solutions, in particular, the interception and surveillance of private
communications. Nonetheless, the Convention does not confer unlimited powers
on the States to interfere with the fundamental rights of persons, regardless of the
importance of the aim of the interference and the States must provide effective
procedural guarantees to exclude the arbitrary and ensure proportionality.
28 The European Court of Human Rights expanded on those findings in
Weber and
Saravia v
Germany, stating that the supervision of so- called ‘strategic monitoring
of communications’ is carried out both by a parliamentary commission and an
independent committee which receive a monthly report on the measures taken and
which have the right to annul decisions which have approved the specific
measures for the strategic monitoring of communications.
29 It is also important to note that it is specifically the lack of effective procedural
guarantees, in particular, the lack of an independent oversight mechanism, was the
reason for which the European Court of Human Rights held that the provisions of
24
Judgment 21 December 2016,
Tele2 Sverige and Watson and Others (C-203/15 and C-698/15
25
Judgment of 6 September 1978,
Klass and Others v
Germany (Application No 5029/71).
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OBSERVATIONS OF LATVIA — CASE C-623/17
the ECHR had been breached in
Szabó and Vissy v
Hungary 26. The European
Court of Human Rights stated that the modern technology available to the
Hungarian authorities had enabled the interception of bulk communications data
concerning an unlimited number of persons, including persons outside Hungarian
territory. Those measures had been approved within the strict framework of
executive power and the applicable legislation did not provide for
ex ante and
ex
post control mechanisms independent of the institutions.
30 Therefore, taking account of the foregoing, the Republic of Latvia considers that
the obligation deriving from the Convention on Member States to respect the
human rights of individuals do not preclude interference by the State with the
right to privacy and secrecy of correspondence, including the interception of bulk
communications data, if such interception takes place in a regulatory framework
with the objective of safeguarding national security.
III. ANSWERS TO THE QUESTIONS POSED BY THE UK TRIBUNAL
In the light of the foregoing considerations, the Republic of Latvia suggests that
the Court should give the following answer to the UK Tribunal as follows:
(1) Having regard to Article 4(2) TEU and Article 1(3) of Directive
2002/58/EC, measures such as those examined in the case in the main
proceedings and the requirement in the instructions given by the Secretary of
State to an electronic communications network operator to supply bulk
communications data to the security and intelligence services of a Member
State do not fall within the scope of EU law and Directive 2002/58/EC,
because they do not fall within the scope of the European Union.
(2) Having regard to the answer to the first question, there is no need to answer
the second.
Riga, 15 February 2018
26
Judgment of 29 June 2006,
Weber and Saravia v
Germany (Application No 54934/00).
10